Allies We Don't Need

Media Matters notes a curious trend. The Washington Post endorsed the confirmation of John Roberts. The Washington Post endorsed the confirmation of Samuel Alito. Now, The Washington Post has gone an excoriated the recent spate of 5-4 decisions in which Roberts and Alito, predictably, joined with fellow conservatives William Rehnquist, Antonin Scalia, and Clarence Thomas to do the sort of things that conservative judges do.

One wishes, at this point, that the Post would simply endorse the decisions as well. If the Post wants to become conservative on judicial issues, the way it's become conservative on foreign policy issues then it is, of course, free to do so. But hewing to a liberal line when it doesn't matter only adds a veneer of credibility when they put forward conservative views on question that do matter -- who should and who should not be confirmed. They could, of course, redeem themselves by noting the contradiction and swearing that they won't carry water for conservative nominees in the future. I, however, won't be holding my breath.

Comments

I'm dead.

Posted by William Rehnquist | June 30, 2007 5:41 PM

Obviously, Matt, you meant to refer to Justice Kennedy, not Chief Justice Rehnquist, above. Further, there was reason to think that then-Judge Roberts would be less doctrinaire than many of the other conservatives President Bush might have nominated -- which is presumably why Senator Feingold -- no accommodationist -- voted to confirm Roberts. I agree that it was more problematic for the Post to endorse Alito.

Posted by jason | June 30, 2007 5:43 PM

Another stake in the heart of the MSM. I believe we will be saving plenty of trees in the future once these goliaths of old news close their doors.

Posted by Pete Burgess | June 30, 2007 5:46 PM

Wonder if ol' Rehnquist is standing guard at the Pearly Gates, demanding minorities show proper i.d. to get in...

Posted by alphie | June 30, 2007 5:59 PM

But it would have been shrill and partisan to oppose Roberts and Alito. It would mean you could legitimately vote against a nominee on philosophical grounds even if the nominee has worked at a prestigious DC firm or been an appellate judge.

That would give the Post vapors. Better to support the nominee and then clutch one's pearls when he/she votes exactly as you knew he/she would.

That's how we do it here in Broderland.

(I don't even want to talk about that journalist tricking the nice lobbyists -- Mr. Broder and Mr. Kurtz had to retire to bed with a headache after that caper.) No, not together.

Posted by Klein's tiny left nut | June 30, 2007 6:12 PM

Jason writes:

"[T]here was reason to think that then-Judge Roberts would be less doctrinaire than many of the other conservatives President Bush might have nominated . . ."

No there weren't. Name one.

Jason continues:

"which is presumably why Senator Feingold -- no accommodationist -- voted to confirm Roberts."

On Presidential nominations, Feingold is very much an accomodationist. And his vote on Roberts was wrong. Indefensible really. I criticized him at the time.

Posted by Armando | June 30, 2007 6:59 PM

But hewing to a liberal line when it doesn't matter...

Exactly which liberal issues 'don't matter'?

Posted by Fred Jones | June 30, 2007 7:03 PM

The Post is a ass.

Posted by Everybody in the World | June 30, 2007 7:12 PM

... adds a veneer of credibility...

Until it doesn't. Eventually people like you begin to notice the trick, at which point the game's up. Then what? Forthright conservatism? Muddle?

Posted by k | June 30, 2007 7:23 PM

To its credit the NYT editorial page opposed both nominations and urged Democrats to filibuster.

Adam Cohen writes the NYT editorials about legal issues for the NYT. He is an apologetic liberal. He has courageously opposed all of Bush's extremist nominees to the courts, not just Roberts and Alito but also nominees for the lower courts.

WP editorials on legal issues were written, up till recently, by Benjamin Wittes who now writes for the New Republic. He is the Mickey Kaus of legal writing, pretending to be a centrist while cheering on every right wing radical, from Kenneth Starr to Roberts and Alito. He has found the right place at the New Repulic.

Posted by DonB | June 30, 2007 7:25 PM

NYT editorial on Alito nomination;

http://www.yuricareport.com/BattleForJudiciary/SenatorsNeedOfSpine.html

January 26, 2006

A New York Times Editorial

"Senators in Need of a Spine"

"Judge Samuel Alito Jr., whose entire history suggests that he holds extreme views about the expansive powers of the presidency and the limited role of Congress, will almost certainly be a Supreme Court justice soon. His elevation will come courtesy of a president whose grandiose vision of his own powers threatens to undermine the nation's basic philosophy of government — and a Senate that seems eager to cooperate by rolling over and playing dead."

It is hard to imagine a moment when it would be more appropriate for senators to fight for a principle. Even a losing battle would draw the public's attention to the import of this nomination.

-----------------

"A filibuster is a radical tool. It's easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court."

NYT editorial page is vindicated.

Posted by DonB | June 30, 2007 8:10 PM

I think Matt missed the point. The president gets to appoint Justices and, of course a conservative president is going to appoint a conservative justice. Just as a liberal President will appoint liberal justices. The only question should be: is the candidate qualified? That doesn't mean you have to agree with their opinions. What Matt's line of thinking leads to is essentially that Justices should be elected not appointed.

Posted by Dave | June 30, 2007 8:11 PM

"Further, there was reason to think that then-Judge Roberts would be less doctrinaire than many of the other conservatives President Bush might have nominated"

There was absolutely no reason to think that.

This is like peoples saying "there was reason to think Bush would be a moderate", "Cheney would be cautious", "Gonzales would be independent", etc.

NYT editorial page opposed his nomination, arguing that he would move the court radically to the right.

Posted by DonB | June 30, 2007 8:21 PM

Dave, no, what it leads to is that there is a more robust Congressional input into which justices are selected. Which isn't strange at all - in fact, back in the Warren court days, it was exactly what conservatives demanded. And did - there is nothing in the Constitution that vets the questions that can be asked of a justice or the allowable reasons to vote against him.

It is nutty to think that the Supreme court is somehow so different from the other Federal judgeships that the Congress should act as a rubber stamp. Hoover's nominee, Parker, was evidently voted down because of fear of his views. There's ample precedent for the Senate to express disagreement with the President's choice - Brandeis, Wilson's choice, made it, but he was roundly opposed for being too progressive.

Posted by roger | June 30, 2007 8:24 PM

It does seem rather disingenuous to read editorials that are shocked -- shocked to discover that Roberts and Alito are conservative. Remember, though, we could have had Supreme Court Justice Harriet Miers, who would have been both conservative and a completely unqualified nincompoop.

Posted by Adam Villani | June 30, 2007 9:05 PM

It should also be mentioned that in 2004, more voters voted for Democratic Senators than Republican ones overall, but because each state gets two senators, the Republicans controlled the Senate. That brings up the question of who exactly is expressing the will of the people, the senate or the president, which muddles arguments against a Senate actually willing to take on a president over judicial nominations.

Posted by Reality Man | June 30, 2007 9:26 PM

"The president gets to appoint Justices and,"

No, presidents get to NOMINATE Justices. The Senate has to give its advice and consent before the nominee is "appointed".

Remember Robert Bork.

Posted by DonB | June 30, 2007 10:17 PM

"Exactly which liberal issues 'don't matter'?"

Good question.

Here is a rundown of the recent WP editorial page positions on legal issues;

* Cheered on the Starr witchunt, portraying Starr as a man of honesty, integrity, fair and balanced, just doing his job, without regard fo politics or ideology.

* An apologist for Bush v Gore.

* Endorsed Ted Olson for Solicitor General.

* Endorsed Roberts and Alito as well as a whole slew or radical right wing nominees to the judiciary.

* Apologist for Libby, ran a smear campaign against the Wilsons, questioning whether Plame was covert and arguing that the Wilsons brought it on themselves. Published several pro Libby op-ads during jury deliberations.

Looks like a pretty right wing record on the important issues of the day. Their after-the-fact editorials whining about Roberts and Alito rulings are meaningless. When it counts they are reliably conservative.

Posted by DonB | June 30, 2007 10:31 PM

"To its credit the NYT editorial page opposed both nominations and urged Democrats to filibuster."

Some conservative rags recommended republicans do the same to the Breyer and Ginsburg nominations as retaliation for what they saw as the trashing of Bork.

Once this process starts, there will be no end to it, as one side's filibuster will become the justification for the other side's. Then nobody gets confirmed to the SCOTUS.

Posted by kafka | June 30, 2007 10:39 PM

Or Presidents will begin to consult with opposition Senators on their Supreme Court appointments, as Clinton did for Breyer and Ginsburg.

Posted by Matt Weiner | June 30, 2007 10:51 PM

Let's recall who is really responsible for the appointment of the fascist c***suckers Roberts and Alito to the Supreme Court. Namely that f***ing asshole Ralph Nader. If Ralph Nader had stayed out of the 2000 election, Al Gore would be appointing Supreme Court justices, not the draft dodging, pot smoking, coke snorting, lying drunk currently occupying the White House.

Posted by SLC | June 30, 2007 11:07 PM

Shouldn't Mr SLC be referring to the fascist cocksuckers "Mr Roberts" and "Mr Alito".

Posted by Gallowglass | July 1, 2007 7:07 AM

Armando,
IIRC Roberts in his hearings expressed more respect for precedent than he might have done. He also said of the Framers, "when they've adopted principles like liberty, that doesn't get a crabbed or narrow construction. It is a broad principle that should be applied consistent with their intent, which was to adopt a broad principle" (9/14/05). He is not a Justice Scalia or Thomas, in other words. Before hearing him in the Senate ("The same conservatism that leads him to decry judicial overreaching in the privacy and civil rights contexts is part and parcel of a larger conservatism that distrusts reckless grandiosity") and after ("So, is Roberts an ideologue? Roberts says no, and most of us are inclined to believe him. If he really is Scalia-without-the-anger, he's the most accomplished liar in world history"), Dahlia Lithwick, and other observers too, identified a streak of care and modesty in his approach to the law that doesn't provide enough of what liberals would want in the Supreme Court, but that does provide more of a restraint-that-sometimes-approximates-fairness than anyone else President Bush, beloved of and committed to judicial extremists, would knowingly nominate to the Court. He came of age, after all, hearing "No More Souters!" and at that time, just into his second term, felt enormously indebted (à la Rove) to his lately-aggrieved base.

Posted by jason | July 1, 2007 10:35 AM

jason, have you looked at the actual votes cast by roberts, the supreme court justice (as opposed to the stage-managed comments by roberts the supreme court nominee)? if you have, perhaps you could explain why you wasted our time with your meaningless 10:35.

roberts votes were entirely predictable; he has surprised no one who cared enough to think about it. period.

Posted by howard | July 1, 2007 11:03 AM

If the Constitutional intent was for the Senate to rubberstamp the President's nominations to the Supreme Court, it would have said so.

If the President is entitled to nominees that espouse his political philosophy, the Senate (collectively) is allowed to vet them by exactly the same criteria.

Posted by Arun | July 1, 2007 11:15 AM

"IIRC Roberts in his hearings expressed more respect for precedent than he might have done."

And you believed him?

This is like Bush saying he was going to be a uniter not a divider.

The hearing was a job interview. You say what you think the interviewer wants to hear in order to get the job.

The nominees actual record, what he has said/written in the past, is the real predictor of what he will do once confirmed.

Go back and read the NYT editorials urging the rejection of Roberts. They based their decision on his actual record as opposed to his answers during the hearings.

Posted by DonB | July 1, 2007 3:28 PM

The question isn't exactly whether Roberts was worth voting against. The question is whether he was worth filibustering.

Though this isn't a distinction for MY, who wants the filibuster abolished.

Posted by AlanC9 | July 1, 2007 5:38 PM

"Or Presidents will begin to consult with opposition Senators on their Supreme Court appointments, as Clinton did for Breyer and Ginsburg."

Except if we moved the bar from "are they qualified" to "are they a compromise no side likes" then neither, especially Ginsburg, would have been given approval by a republican senate. That is what is so dangerous about this line of thinking.

Posted by Dave | July 1, 2007 6:29 PM

Howard,
Of course Roberts, like any Bush appointee, is going to make his share of terrible, conservative decisions. We're talking about Bush appointees.

In 2005, the Democrats had a whopping 45 votes in the Senate. That isn't enough to prevent cloture. John Kerry tried to mount an 11th-hour filibuster (with Alito, IIRC) and it was an embarrassing non-event. Alito is far worse than Roberts, however, IMHO, so I respect the gesture there more; and DonB is actually wrong (partly) about stage management. Sometimes nominees are so ideological that they can't restrain themselves from expressing their agenda even in the hearings. You'd think conservative judges would have learned post-Bork to avoid these displays, but Alito's opening statement contained a snide, condescending, and utterly gratuitous attack on 1960s antiwar and cultural dissent.

As for Roberts, his careful attention to detail and procedure is a good thing in a judge, and a chief justice in particular; recall the disastrous, manipulative tenure of Warren Burger.

It's at least plausible to argue that the question for the Senate is not whether a nominee has the right basic philosophy and approach but whether there are enough saving graces in these areas to believe that the nominee will be better than anyone else the incumbent is likely to appoint.

Remember too, that even if you reject this view the Democrats couldn't have prevented either Bush nominee from taking over. Should they, then, have done as much as they could to speak to the base and the disaffected by making a strong ideological statement of opposition, voting no en masse even if in defeat? Maybe ... but remember, a filibuster, at least, would have led to the nuclear option, which is a whole separate can of worms. And the political consequences of solid no vote on a nominee who is widely respected would be unpredictable.

Posted by jason | July 1, 2007 7:36 PM

The Washington Post has become a full-blown neo-conversative rag with (now) wholly empty pretensions to liberalism--at least in its editorial outlook. Their op-ed page is a joke. Even the New York Times, which I feel more than ambivalent about, seems like an oasis of cosmopolitan liberal sensibility when stood up against the egregious Post.

Posted by Warren | July 2, 2007 3:20 AM